Calcutta High Court (Appellete Side)
Diamond Harbour Municipality & Ors vs Hayagrib Naiya & Anr on 26 April, 2018
Author: I.P. Mukerji
Bench: Md. Mumtaz Khan, I.P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Mr. Justice Md. Mumtaz Khan
FMA 3093 of 2015
Diamond Harbour Municipality & Ors.
vs.
Hayagrib Naiya & Anr.
For the appellants :- Mr. Shyama Prosad Purkait
Mr. Sandip Kr. Bhattachayya
Ms. Moumita Mondal
...Advocates
For the Respondents :- Mr.Bikash Ranjan Bhattacharya, Sr. Adv.
Mr. Partha Sarkar
Mr. Avijit Basu ...Advocates
Judgement On :-26.04.2018
I.P. MUKERJI, J.
This appeal arises out of a writ application complaining, of the punishment of compulsory retirement made by the appellant authority in a disciplinary proceeding, on the respondent/writ petitioner. In the writ application filed by the respondent/writ petitioner (W.P. No. 24257 (W) of 2014, Hayagrib Naiya v. Diamond Harbour Municipality & Ors.), by a final judgement and order made on 10th April, 2015, this Court quashed and set aside the charge sheet dated 12th April, 2012, the report of the enquiry officer dated 7th February, 2014 the show cause notices dated 21st February, 2014 and 17th May, 2014 and the order of punishment dated 24th July, 2014.
Aggrieved the municipality is up in appeal before us. They repeat the submission made before the Hon'ble first Court that the writ application was not maintainable as there was an alternative remedy. In our opinion the Court below rightly held that since violation of the principles of natural justice was involved, the existence of an alternative remedy was no bar, relying on Harbanslal Sahnia And Anr. vs Indian Oil Corpn. Ltd. And Ors. reported in (2003) 2 SCC 107, which laid down:-
"So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged See Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC
11. The present case attracts applicability of first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings."
Now, the facts in some more detail. The respondent/writ petitioner was working as a clerk in the Diamond Harbour Municipality. He was so working from 1996.
On 30th June, 2009 one MLA Milan Chakraborty entered the office of the appellant municipality, chased by a group of people from the office of the Block Development Officer, which was adjacent to it, where he was present immediately before entering the municipality office. The employees of the municipality closed the first floor gate of their office. The Personal Security Officer (PSO) of the MLA fired from his service revolver, apparently to restrain the group of people chasing him. The firing appears to have been blanked. There is no report of any injury. We do not know what was the accusation but a First Information Report was lodged with the Officer-in-Charge of the Diamond Harbour Police Station by a sub-inspector attached to it. As a result of it P.S. Case No. 294 dated 30th June, 2009 was started.
The municipality thought that the respondent/writ petitioner was involved in all these incidents. On 13th July, 2009 they suspended him. On 11th August, 2009 he was issued a show-cause notice. He approached this court by filing two writ applications, one challenging the suspension and the other challenging the show-cause notice. It appears that in the writ application challenging the suspension no interim order was granted. Subsequently, the writ challenging the show-cause notice was filed. The matter was carried upto the appeal court which on 11th April, 2011, restrained the appellant authority from taking further steps with regard to the show-cause notice. The order of suspension was quashed. The appellant municipality filed a Special Leave Petition to the Supreme Court which permitted the disciplinary proceedings to continue. On 12th April, 2012 a charge sheet was issued to the respondent/writ petitioner. Enquiry was conducted and a report made and published on 7th February, 2014. A show-cause notice dated 21st February, 2014 was issued to the respondent writ petitioner stating that the charges mentioned in the charge sheet had been proved against him. On 17th May, 2014 another notice was issued to him stating that the proposed punishment was compulsory retirement from service. On 24th July, 2014 the punishment order was passed directing the respondent/writ petitioner's "compulsory retirement from service". The case made out by the respondent/writ petitioner in the writ application leading upto this appeal is as follows. He was not supplied the minutes and other relevant documents during the enquiry. The show-cause notice dated 21st February, 2014 could not be issued as it indicated formation of opinion without giving an opportunity to the respondent/writ petitioner to reply to the enquiry report. The final decision further to the show-cause notice dated 17th May, 2014 was also arrived at without giving an opportunity to the respondent/writ petitioner to deal with the same. The order of punishment dated 17th May, 2014 was vitiated for lack of reasons.
In the impugned judgement and order dated 10th April, 2015the court below has found each and every ground made out in the writ application to be established. It has specifically found that copies of documents relied upon in the enquiry report were not handed over to him and this vitiated the enquiry, relying on State Bank of India Vs. Tapan Kumar Das reported in (1993) 2 CHN 103, Managing Director, ECIL, Hyderabad and Others v. B. Karunakar and Others reported in (1993) 4 SCC 727.
On that basis the Hon'ble 1st Court quashed the charge sheet dated 12th April, 2012, the report of the enquiry officer dated 7th February, 2014, show-cause notices dated 21st February, 2014 and 17th May, 2014 and the impugned order of punishment dated 24th July, 2014, while allowing the writ application.
Sitting in appeal in the writ jurisdiction, this court should be very cautious to interfere with the findings of facts made by the Hon'ble 1st Court. In fact, there is no evidence on record to contradict the findings of fact made by the learned trial Judge about non-supply of minutes and documents concerning the enquiry and denial of opportunity to the respondent/writ petitioner to file replies to the show-cause notices. Moreover, it was submitted before us that the complaint made to the police did not even mention the name of the respondent/writ petitioner. More fundamentally the only facts which have been proved are that an MLA stepped into the premises of the municipality along with his Personal Security Officer, chased by a group of persons. Doors of the first floor were locked by the employees. His security officer fired blank shots. Nobody was injured. There was no damage to property. The case against the respondent was that he had engineered the incident. Although we uphold the reasons given by Mr. Justice Kar Gupta in quashing the disciplinary proceeding we may also add that even if we did not concur with his lordship's decision, the charges that the respondent/writ petitioner was involved in the incident have not been proved at all. Even if the respondent/writ petitioner is assumed to have been involved, in our opinion ex facie nothing so serious happened so as to warrant the punishment handed down to him.
For all these reasons we affirm the impugned judgement and order dated 10th April, 2015. The appeal is hereby dismissed.
No order as to costs.
Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. I Agree.
(Md. MUMTAZ KHAN, J.) (I.P. MUKERJI, J.) LATER:
Judgment in the above appeal was made ready a little before the recent cease work called by the lawyers of this Court. It was not placed for judgment because of the cease work. The lawyer aggrieved by the judgment might not have been able to be present to ask for stay of operation thereof. The application for a certified copy of the order may not have been submitted in time.
However, as the cease work continued without any prospect of the Court resuming its normal functions in the foreseeable future, on and from 5th April, 2018 these matters were placed in the list "For Judgment". Nevertheless, judgment was not delivered, hoping that the cease work would end.
This Court is of the opinion that it is high time to deliver the judgment in the interest of the parties and in the interest of justice. A judgment in the above appeal has been delivered today (26.04.2018). Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I.P. MUKERJI, J.) (Md. MUMTAZ KHAN, J.)